DONNA L. FAIR, F/K/A DONNA L. DRAKE, APPELLANT,
v.
SEAN KAUFMAN AND BARBARA KAUFMAN, APPELLEES
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Appellant Fair challenges a foreclosure judgment entered against her by the Kaufmans, arguing the appellees failed to introduce the original promissory note and mortgage at trial. The court agrees and reverses, holding that the original documents or a satisfactory explanation for their absence are mandatory in foreclosure actions.
No. The original note and mortgage must be introduced into evidence at trial, or a satisfactory reason must be given for their absence. Introduction of such documents at a summary judgment proceeding is insufficient to satisfy this requirement.
[1] A party seeking to prevail in a suit on a note and mortgage must introduce the original note and mortgage into evidence at trial, or provide a satisfactory reason for the…
[2] Introduction of original loan documents at a summary judgment hearing does not satisfy the requirement for their introduction at trial.
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Join FLexlaw to unlock all legal intelligence“In order to prevail in a suit on a note and mortgage, the original note and mortgage must be introduced into evidence or a satisfactory reason must be given for failure to do so.”
Establishes the mandatory requirement for production of original documents in foreclosure actions.
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Join FLexlaw to unlock all legal intelligenceFair executed a note and mortgage on September 3, 1986. State Equity Investment Corporation filed a foreclosure complaint on February 24, 1989, allegi…
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QUINCE, Judge.
Donna L. Fair, fik/a Donna L. Drake, appeals the trial court’s final judgment of foreclosure. We remand this case to the circuit Court because the appellees, Sean and Barbara Kaufman, failed to introduce at trial the original note and mortgage.
On February 24, 1989, State Equity Investment Corporation filed a complaint to foreclose a mortgage against Donna Fair. The complaint alleged Mrs. Fair executed and delivered a note and mortgage on September 3, 1986, and further alleged she defaulted under the note and mortgage. Appellant answered and counterclaimed seeking reformation and/or rescission of the contract. On April 20, 1992, a motion to substitute the Kaufmans as the plaintiffs was filed, and the trial court entered an order of substitution.
The case proceeded to trial on August 20, 1992 and December 4, 1992. At the conclusion of all of the evidence, the court requested written memoranda from the parties. A final judgment of foreclosure was entered in favor of the Kaufmans on March 30, 1993. On appeal appellant argues, inter alia, the final judgment of foreclosure must be reversed because the appellees did not introduce into evidence the original note and mortgage. We agree and reverse.
In order to prevail in a suit on a note and mortgage, the original note and mortgage must be introduced into evidence or a satisfactory reason must be given for failure to do so. W.H. Downing v. First National Bank of Lake City, 81 So. 2d 486 (Fla.1955). The record in this case does not indicate the original documents were offered and/or received into evidence. The appellees argue the original note and mortgage were filed and placed into evidence at the summary judgment hearing. This is not sufficient. The introduction of such documents at a summary judgment proceeding does not obviate the necessity for proper introduction at trial. Cf. R.L. Bernardo & Sons, Inc. v. Duncan, 145 So. 2d 476 (Fla.1962).
The failure to introduce those original documents precludes the entry of a final judgment. On remand the trial court may again enter a final judgment of foreclosure upon presentation of the original note and mortgage. Pastore-Borroto Development, Inc. v. Marevista Apartments, 596 So. 2d 526 (Fla. 3rd DCA 1992) and Figueredo v. Bank Espirito Santo, 537 So. 2d 1113 (Fla. 3rd DCA 1989).
The final judgment of foreclosure is reversed and remanded for farther proceedings consistent with this opinion.
RYDER, A.C.J., and PARKER, J., concur.
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Deutsche Bank Nat'l Tr. Co. for First Franklin Mortg. Loan Tr. 2006-FF7 v. Ezra Clarke, 87 So. 3d 58 (Fla. 4th DCA 2012)…the original note was filed, the trial court properly considered the duplicate of the mortgage. Id. The reasoning in Perry, hewing closely to the language of section 90.953, is persuasive. Perry appears to conflict with language in Fair v. Kaufman, 647 So. 2d 167, 168 (Fla. 2d DCA 1994). There the second district made this statement of law: In order to prevail in a suit on a note and mortgage, the original note and mortgage must be introduced into evidence or a satisfactory reason must be given for failure…
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Neal v. State, 697 So. 2d 903 (Fla. 2d DCA 1997)…DCA 1988) (observing that the filing of a mortgage as an appendix to a complaint does not obviate the need to admit it into evidence for consideration of its content, and holding that pleadings are not themselves evidence); see also Fair v. Kaufman, 647 So. 2d 167 (Fla. 2d DCA 1994).2 Even if the prosecutor had made his statement in testimony under oath, reporting facts developed by a third party, or if the State had attempted to introduce the traverse into evidence, both properly would have been rejected as…
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Colson v. State Farm Bank, 183 So. 3d 1038 (Fla. 2d DCA 2015)…ion. VILLANTI, C.J., and CRENSHAW, J., Concur. . “In order to prevail in a suit on a note and mortgage, the original note and mortgage must be introduced into evidence or. a satisfactory reason must be given for failure to do so.” Fair v. Kaufman, 647 So. 2d 167, .168 (Fla. 2d DCA 1994) (citing W.H. Downing v. First Nat'l Bank of Lake City, 81 So. 2d 486, 488 (Fla. 1955)). “Because a promissory note is a negotiable instrument, a plaintiff seeking to foreclose on a defendant must produce the original note (o…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Downing v. The First Nat'l Bank OF Lake City, 81 So. 2d 486 (Fla. 1955)
- Pastore-Borroto Dev., Inc. v. Marevista Apts., 596 So. 2d 526 (Fla. 3d DCA 1992)
- R. L. Bernardo & Sons, Inc. v. Duncan, 145 So. 2d 476 (Fla. 1962)
- Figueredo v. Bank Espirito Santo, 537 So. 2d 1113 (Fla. 3d DCA 1989)
- Langel v. Alcee L. Hastings, 537 So. 2d 1113 (Fla. 4th DCA 1989)